5 Kan. App. 498 | Kan. Ct. App. | 1897
The jurisdiction of this court to hear and determine this action is again challenged by the defendant in error, upon the ground that the amount or value of the property in controversy exceeds
But the vital question in this case is that of duress. In other words, do threats of lawful arrest constitute duress? This we must answer in the affirmative. While it has been held that threats of imprisonment, to constitute duress, must be unlawful imprisonment, we think the question is, whether the threat is of imprisonment which will be unlawful in reference to the ■conduct of the threatener, who is seeking to obtain a ■contract by his threat.
1 ‘ Imprisonment that is suffered through the execution of a threat which was made for the purpose of forcing a guilty person to enter into a contract, may ’.be lawful as against the authorities and the public, ibut unlawful as against the threatener, when consid*501 ered with reference to his effort to use for his private benefit, processes provided for the protection of the public and the punishment of crimes. One who has overcome the mind and will of another for his own advantage, under such circumstances, is guilty of a perversion and abuse of the laws which were made for another purpose, and he is in no position to claim the advantage of a formal contract obtained in that way.
. In such a case there is no reason why one should be bound by a contract, obtained by force, which, in reality, is not his, but another’s.” Morse v. Woodworth, 155 Mass. 233 ; Hargreaves v. Korcek, 44 Neb. 660, 62 N. W. Rep. 1086.
In the case of Bone v. Detrick (52 Ill. 27), the court said :
“The mortgage was void for another reason; it was executed through a perversion and abuse of criminal process. It is against public policy that process should be thus used, and no court will allow the results flowing from it to be enjoyed by him who so uses it.”
The Supreme Court of California has said : “Under that kind of menace which consists in a threat of an injury to the character of a person, it is v J ir 7 entirely immaterial whether such person is guilty or innocent of the crime to be charged.” Morrill v. Nightingale, 93 Cal. 452, 28 Pac. Rep. 1068 ; citing Bone v. Detrick, supra.
In Hackett v. King (6 Allen, 58), it was held :
‘ ‘ Though a person is arrested under a legal warrant, and by a proper officer, yet, if one of the objects of the arrest is thereby to extort money, or enforce the settlement of a civil claim, such arrest is a false imprisonment by all who have directly or indirectly procured the same, or participated therein for any such purpose ; and a release or conveyance of property obtained by means of such arrest is void.”
“ If he had embezzled their funds, they had a right to have him prosecuted. If he owed them a debt they had a right to accept security for it. But they would have no right to make use of criminal process for the collection of a debt. An arrest, even upon a legal warrant and upon a criminal charge, to compel the payment of a mere debt, would be a misuse of legal process ; and the threat of such an arrest may constitute unlawful arrest.”
“ It is now well settled that when there is an arrest for improper purposes, without a just cause, or where there is an arrest for a just cause, but without lawful authority, . . . for unlawful purposes, it may be construed duress.” Richardson v. Duncan, 3 N. H. 511.
‘ ‘ It will thus be seen that an imprisonment for an unlawful purpose will constitute duress, and such being the fact, a threat of aivrest and imprisonment, made for unlawful purposes,,will constitute menace.” Morrill v. Nightingale, supra.
And the Supreme Court of this State has said:
“An arrest by a legal warrant on a criminal charge, to compel the satisfaction of a mere private civil demand, is a misuse of process, and fraud upon the law, and an illegal arrest as respects the. party who knowingly and purposely perverts the machinery in that way. And papers obtained under the pressure of such a proceeding by the party promoting it, are at least voidable as against him at the election of the party thus constrained to make them.” Citing Seiber v. Price, 26 Mich. 522 ; Thompson v. Niggley, 53 Kan. 667.
The facts set out in the' pleadings in this case are, that this deed was obtained to satisfy an alleged indebtedness between the Bank and Morgan Heaton, by means of a threat that, if Mattie J. Heaton did not execute it, her husband would be arrested and imprisoned. Such a threat contemplates an abuse of
“ Either the accusation which the defendant brought against Eadie was entirely unfounded, or.he was seeking to compromise (compound) a criminal offense. If he knew that a prime had been committed by Eadie, he had no right to compromise it in this way, and the securities obtained on such compromise were received as a consideration for compromising a felony, and for that reason were invalid, else the whole of his assertions and threats on the subject were a gross imposture.”
It is true that this defense is not raised ; but the answer to that is found in the language of Ryan, C. J., in Wight v. Rindskopf (43 Wis. 348) :
“If the objection be not made by the party charged, it is the duty of the court to make it on its own behalf. Courts owe it to public justice, and to their own integrity, to refuse to become parties to contracts essentially violating morality or public policy, by entertaining actions upon them. It is judicial duty always, to turn a suitor upon such a contract out of court, whenever and however the character of the contract is made to appear.”
We think the court erred in the rejection of the testimony concerning the facts and circumstances leading up to, and surrounding, the execution of the deed. All of this testimony was proper and should have been admitted. Should we concede that the notary could not be permitted to deny a fact which he had expressly certified to, it would not preclude him. from testifying to the circumstances with reference to which his testimony was offered; and he is certainly a competent witness to show all that occurred at the time he was taking tne acknowledgment. Besides, we are at a loss to - understand how any of his testimony contradicts anything in his certificate, or that which he is required to certify to by statute. He is not required to certify to any of the transactions concerning the instrument or the contents thereof. He only certifies that the party duly acknowledged the execution, not that her act was voluntary or otherwise. A certificate
The execution of a deed can be proven even though the deed has never been acknowledged. ¶ ¶ 1121, 1122, 1123, Gen. Stat. 1889.
The Supreme Court of this State has held where the execution of a deed is proven, it is then immaterial whether the deed was acknowledged or not. Heil v. Redden, 45 Kan. 562.
The judgment in this case will be reversed and cause remanded for a new trial.